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UKSolicitorJA
UKSolicitorJA, Solicitor
Category: UK Immigration Law
Satisfied Customers: 3627
Experience:  English Solicitor and UK Immigration Law Expert
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Can EEA 16 nationals (parents) who have come to the UK for

Customer Question

Can EEA 16 nationals (parents) who have come to the UK for work and permanent settlement derive the right for Pension credit from her daughter who is an EEA 16 citizen living and working in the UK for more than 5 uninterrupted years and also married to an UK national ?
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  John Knox replied 2 years ago.
Hello,

I will do my best to help you with this.

If you are ordinarily resident in the UK and of state pension age, you will be entitled to the pension credit (provided that you meet the other criteria). Your lack of British citizenship will not prevent your entitlement to the credit. The important thing is that you are residents here.
Customer: replied 2 years ago.
What is your meaning of "ordinarily resident" ? (we are in the UK since 18/05/2011) and what is the meaning of "other criteria" ?
Expert:  John Knox replied 2 years ago.
If this is the country in which you now live and will live in the future then you are resident here.

The other criteria is the normal criteria for anyone who is trying to obtain pension credit e.g. a British pensioner for example. So, what you will receive will depend on your income from other sources.
Customer: replied 2 years ago.

DWP refused on the ground that I have no "right to reside" and therefore I am also not habituallt resident.

How then as a EEA 16 can I derive the right to reside status? A UK citizen I can assume has this automatically through his citizenship and a EEA 16 qualifies under which conditions which I think is discrimanotory in EU legislation.Am I right ?

Customer: replied 2 years ago.
I am still waiting for reply.
Customer: replied 2 years ago.

DWP stated that I am a not qualified person as defined by regulation 6(1) of the Immigration (EEA) regulation 2006 and therefore does not have the right to reside and is not habitually resident in the UK.

They further said that this decision was made in accordance with Regulation 2(1),(2) & (3) of the State pension Credit regulations 2002.

Please explain this in simple language so that I know for better or worse what are they implying.

This is mind boggling to say the least.

 

Customer: replied 2 years ago.
still waiting for your reply
Expert:  UKSolicitorJA replied 2 years ago.
Hello,

I am happy to deal with your UK immigration law issues. Sorry for the delay.

There is a great deal of debate about the UK requiring that EEA residents need to be habitually resident in the UK in order to qualify for various benefits, including pension credits.

The European Commission issued an opinion in 2011 saying the policy was discriminatory, but the UK Government is oppossed to the Commission's opinion.

It does appear that you have the right to reside in the UK as a family member of your daughter (assuming that you are dependent on her) who has now become a permanent resident in the UK as she has lived here for 5 years. As such, you should qualify for pension credits.

As your daughter is working in the UK, you also qualify on that basis and are exempt from the habitual residence test.

This British Parliament paper will help you understand the issue better: www.parliament.uk/briefing-papers/SN05972.pdf

You should write a letter to DWP on the above basis or get a Solicitor to do so if they still do not agree.

All the best. Please click on Accept



Customer: replied 2 years ago.

Point taken as having the right to reside in the UK via my daughter. That however according to the DWP excludes me from the right to claim Pension Credit although I am in the correct age group to do so.

I came to the UK because of strong family ties which I have no more in my home country and to continue with my employment (job seeker as EEA 16 national).

If however I want to claim Pension Credit I would (via the jobseeker route) have to have worked in the UK without interruption for 1 year and been residing in the UK for 3 years.

Theoretically if I fullfilled above conditions set upon me in another EU member country I

could export these rights to the UK and have therefore the rights to Pension Credit!!!!

This I think the EU members agreed upon because once I have taken the right of Pension Credit in the UK, I cannot export these rights to another EU member and would consequently loose my Pension.

Please advise, because this is the only route under EU law I can think off to solve my

"problem" satisfactorily.

Thank you and waiting for your advice,

Expert:  UKSolicitorJA replied 2 years ago.
I will look into this again and revert in an hour or so
Customer: replied 2 years ago.

That's fine.Now that we have come so far there should not be any timeframe on you rather quality and validity to apply to this scenario.. This could become another "test case" Offner versus DWP. So lets be diligent.

 

 

Thank you,

Expert:  UKSolicitorJA replied 2 years ago.
Having looked at the EEA Regulations 2006, you would fall under Regulation 7(1)(c), not Regulation 6 as you are applying on the basis of being a dependent parent of an EEA national with permanent residence.

This is where you derive your right of residence in the UK: http://www.legislation.gov.uk/uksi/2006/1003/regulation/7/made

By virtue of the above, you are deemed to be habitually resident in the UK under Reg. 2(a) of the State Pension Credit Regulations 2002: http://www.legislation.gov.uk/uksi/2002/1792/regulation/2/made

You therefore qualify for pension credits.

Please click Accept as your query has been answered.

Customer: replied 2 years ago.

Thank you very much for these expertly researched answers.I sent evidence of my daughters employment letter,recent payslips,maternity pay slips and a P 60 payslip for 2011 to DWP.Waiting for their reply.

My daughter came to UK as a worker (bio-chemical scientist) in the late nineties and worked in the UK continously for appr. 1/2 years. She left the UK and came back in 2001.

She worked again in the UK permanently from 2001 to 2006.In 2006 she went on maternity leave(first child) .From 2006 until today she worked on a basis of two to three days a week permanently throughout the year until the birth of her second child in 2011.

She went on maternity leave again and started work on 13.02.2012. On both occasions she got paid maternity leave.

The questions I would like you to ask is as follows:

Can above situation in any way derail my daughters status as a "worker" ?

Can her relationship as a spouse to a UK citizen positively influence above ?

I presume her uninterrupted residence status of more than ten years should also be a positive weight factor ? ( I do not know if my daughter as yet applied for permanent residence).

Thank you again for your help and waiting for your reply,

 

 

 

 

 

 

 

 

2006 until today she continued working

 

 

Customer: replied 2 years ago.

Hi there. Have you got an answer for my questions please?

Thank you so much in advance.

Expert:  UKSolicitorJA replied 2 years ago.
Hello,

Her status as a worker is not derailed;
the fact that she is married to a UK national is not relevant here;
EEA nationals obtain permanent residence status automatically, no need to apply. In your daughter's case, she would have obtained PR after living in the UK for 5 years and she can apply for UK citizenship now if she wishes to as a spouse of a UK national.

Hope this helps. Please click on Accept as your query has been answered
UKSolicitorJA, Solicitor
Satisfied Customers: 3627
Experience: English Solicitor and UK Immigration Law Expert
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